JUNE 2024  9 
Denial of Bathroom Access
Denying an employee access to a 
bathroom or other sex-segregated 
facility consistent with their gender 
identity, OR in relation to their preg­
nancy, childbirth, or related medical 
conditions may be a violation of 
Title VII.  
	
Employers should note that in 
addition to being part of a harass­
ment claim, denial of access to a 
bathroom consistent with one’s gen­
der identity may be a discriminatory 
action in its own right and should be 
evaluated accordingly. 
Virtual Meetings
Harassing conduct is not limited to 
the physical workplace.  Harassment 
includes conduct if it is conveyed 
using work-related communication 
systems, accounts, devices, or plat­
forms (i.e., via email, instant mes­
saging, videoconferencing, or other 
technologies). 
	
As with a physical work envi­
ronment, conduct within a virtual 
work environment can contribute to 
a hostile work environment. Harass­
ment in the “virtual” workplace can 
include:
•	sexist comments made during a 
video meeting;
•	ageist or ableist comments typed 
in a group chat;
•	racist imagery that is visible in an 
employee’s workspace while the 
employee participates in a video 
meeting; or
•	sexual comments made during a 
video meeting about a bed being 
near an employee in the video 
image.
In sum, the EEOC’s new enforce­
ment guidance enhanced protections 
against workplace harassment for 
employees, notably for  employees 
who have medical conditions related 
to pregnancy or childbirth, particular 
gender/pronoun and/or restroom 
preferences, and for employees who 
identify as LGBTQ+ or are pregnant. 
This new guidance, however, also cov­
ers other statutorily protected charac­
teristics. With that in mind, employ­
ers need to exercise caution and be 
patient to see how courts respond to 
the EEOC’s new enforcement guid­
ance, as there’s little doubt it will be 
challenged and spark mounting legal 
battles in the coming years. 
Failing to address or designate an employee by their known 
gender identity or correct pronoun (a/k/a misgendering) 
qualifies as unlawful harassment under Title VII if it is done 
repeatedly or intentionally. 
 What HR Needs to Know

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